Madras High Court
G.Arockiya Doss vs S.Syed Ibrahim on 31 March, 2022
C.M.A.No.345 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.M.A.No.345 of 2022
G.Arockiya Doss ...Appellant/ Petitioner
Vs
1.S.Syed Ibrahim
2.The United India Insurance Company Limited,
Silingi Building,
New No.134, Old No.40-45
Greams Road,
Chennai-600006. ...Respondents/Respondents 1 to 2
PRAYER: Petition filed under Section 173 of the Motor Vehicle Act,
to allow the appeal and enhance the compensation in
M.C.O.P.No.1372 of 2013 dated 03.09.2018 on the file the learned V
Judge, Motor Accidents Claims Tribunal, Court of Small Causes,
Chennai.
1/53
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For Petitioner : M/s.Ramya Rao
For Respondents : Mr.M.B.Raghavan for R2
for M/s M.B.Gopalan &
Associates.
Not ready in notice regarding R1
Mr.Edwin Prabhakar,
Special Government Pleader
(assisting the Court)
JUDGEMENT
Though the appeal is filed by the claimant seeking an
enhancement, I am, while passing orders in the appeal also compelled
to pass certain directions with reference to the examination of the
injured persons by the Medical Board for assessing the disability as
earlier orders of this Court as well as that of the Hon'ble Supreme
Court have remained directions on paper and “ready to use
Certificates” issued by "Stock Witness Doctors" continue to be marked
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and awards based on them. Before passing the above referred
directions, I would first deal with the claim on hand.
2.The claimants have filed the above Civil Miscellaneous
Appeal seeking to enhance the Award passed by the learned V Judge,
Motor Accidents Claims Tribunal, Small Causes Court, Chennai.
3.The brief facts of the case are as follows:
The appellant/claimant who works as a Coolie (Load Man) and
aged 37 years, had sustained injuries in a road accident that had
occurred on 09.02.2010. By reason of the accident, the appellant had
sustained a head injury, fracture in left superior pelvic rami, abrasion
2x1 c.m. over left maxilla and multiple injuries all over the body. He
had therefore claimed a sum of Rs.6,00,000/- as compensation.
4.It is his case that on the said date, while he was crossing Anna
Salai near the Exhibition ground and proceeding in an East to West
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direction, a motor cycle, bearing Registration No.TN-65-J-2153
belonging to the 1st respondent and insured with the 2nd respondent,
driven in a rash and negligent manner by its rider had hit the
petitioner,
as a result of which, the petitioner sustained grievous injuries all over
the body.
5.The 1st respondent remained ex parte and it was the 2nd
respondent/Insurance Company which had filed a counter and
contested the claim. In their counter statement, the 2nd respondent
had stated that there was no negligence on the part of the driver of the
motorcycle and the accident had occurred only due to the petitioner's
negligence as he crossed the road suddenly without following the
basic road rules. They had further contended that the petitioner has to
prove, with documentary evidence, that the driver of the 1st
respondent's vehicle was holding a valid license and the vehicle was
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having a valid policy.
6.The learned Judge, Small Causes Court, Chennai, by order
dated 03.09.2018 had awarded a sum of Rs.1,24,000/- as
compensation
under the following heads:
Sr. Heads Amounts
No
1. Pain and Sufferings Rs.20,000/-
2. Extra nourishment Rs.15,000/-
3. Transportation charges R.5,000/-
4. Disability (20% x 3000) Rs.60,000/-
5. Attendant Charges (2 days x Rs.350/-) Rs.700/-
6. Towards Loss of amenities Rs.10,000/-
7. Loss of income Rs.12,000/-
8. Medical expenses Rs.1,000/-
Total Compensation Rs.1,23,700/-
Rounded off Rs.1,24,000/-
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7. Aggrieved by this compensation that has been awarded, the
appellant has filed the above appeal seeking its enhancement. It is the
contention of the learned counsel for the appellant, Ms.Ramya Rao,
that though PW2, doctor had issued a Disability Certificate showing a
partial permanent disability of an extent of 40%, the Tribunal has,
without assigning any reason reduced it to 20%. Therefore, the
percentage of disability has to be increased and proportionately the
Award as he had sustained injuries on the pelvic region and was
hospitalised for two days. She would further submit that the Award
under the head of loss of income has also to be enhanced since the
claimant had been without work for over five months on account of the
fractures sustained by him.
8.Mr.M.B.Raghavan, learned counsel for the 2nd respondent
would fairly contend that the Award appeared to be reasonable except
for the fact that the disability has been reduced to 20% though PW2
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has given evidence about the disabilities suffered by the
appellant/claimant. Apart from that, the learned counsel has argued at
length about the manner in which the Motor Accidents Claims
Tribunals have thrown to winds the dicta laid down by the Division
Bench of this Court as well as by the Hon'ble Supreme Court
regarding the procedure that the Tribunals has to follow while dealing
with injury cases, particularly, with reference to the issue of disability
certificates. To add insult to injury, the learned counsel would submit
that these orders are quoted out of context as a result of which, the
malaise that was sought to be remedied continues unabated.
9.Heard the learned counsel for the appellant and the learned
counsel for the respondents and perused the papers.
10.Admittedly, the doctor who had assessed the appellant's
disability has adduced evidence as PW2 and produced the Disability
Certificate (Ex.P.5) to show that the appellant had sustained a
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disability of 40%. If the nature of the injury sustained by the
appellant and the work done by him is taken into consideration the
disability as assessed by PW2 is reasonable. However, the injuries
suffered by him though of a permanent nature does not affect his
future employment prospects or his earning capacity. Therefore, the
compensation under the head of disability has to be assessed, only on
the percentage basis and not on the multiplier method. The place of
the injury and the nature of the injury together with the time that has
been spent at the hospital without going for work clearly shows that
the appellant had suffered immense pain. Therefore, the amount
under the head of pain and sufferings, extra nourishment, loss of
amenities, etc., has to be increased. Further, the appellant has himself
stated that his income is Rs.6,000/- per month and considering the
injury, he would have remained idle at home without work for atleast
five months and therefore, an amount of Rs.30,000/- is awarded under
the head of loss of income and only Rs.700/- has been awarded
towards attendant charges which ought to be enhanced to Rs.4,000/-.
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Therefore, taking into consideration the above aspects the modified
amount of compensation is as follows:
Sl. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Pain and Sufferings Rs.20,000/- Rs.40,000/- Enhanced
2. Extra nourishment Rs.15,000/- Rs.25,000/- Enhanced
3. Transportation Rs.5,000/- Rs.10,000/- Enhanced
charges
4. Disability Rs.60,000/- Rs.1,20,000/- Enhanced
(assessed at (assessed at
20% x 40% x
3,000/-) 3,000/-)
5. Attendant Charges Rs.700/- Rs.4,000/- Enhanced
(2 days x Rs.350/-)
6. Loss of amenities Rs.10,000/- Rs.20,000/- Enhanced
7. Loss of income Rs.12,000/- Rs.30,000/- Enhanced
8. Medical expenses Rs.1,000/- Rs.1,000/- Confirmed
TOTAL Rs.1,23,700/- Rs.2,50,000/-
rounded off -
Rs.1,24,000/-
Therefore, the Civil Miscellaneous Appeal is allowed and the
compensation is enhanced to a sum of Rs.2,50,000/-. The 2nd
respondent Insurance Company is directed to deposit the
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compensation amount now determined by this Court with interest @
7.5% per annum, less the statutory deposit already made, to the credit
of M.C.O.P.No.1372 of 2013 on the file of the learned V Judge, Motor
Accidents Claims Tribunal, Court of Small Causes, Chennai, within a
period of six weeks from the date of receipt of a copy of this order.
On such deposit, the appellant is permitted to withdraw the amounts
by making necessary applications.
11.The claimant is directed to pay the Court fee for the enhanced
compensation amount, if required. The Tribunal below shall not
disburse the enhanced amount till such time as the certified copy
showing proof of payment of Court Fee has been produced by the
claimant. No costs.
12.Let me now consider the argument of the learned counsel for
the respondent that guidelines setting out the procedure for assessing
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the disability is not being followed in its letter and spirit.
13.The learned counsel appearing for the Insurance Company
had brought to the notice of this Court the first Judgement of the
Hon'ble Supreme Court reported in (2011) 1 SCC 343 [Raj Kumar v.
Ajay Kumar and another], where for the first time, the idea of
referring cases to the Medical Board for assessing permanent
disability and its impact on a person's earning capacity was mooted.
The Bench had opined that when a claimant suffers a permanent
disability by reason of injuries, the assessment of the compensation
under the head of loss of future earnings would primarily depend upon
the effect and impact of such injury/permanent disabilities on his
earning capacity. The Bench had observed as follows:
"The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of
the cases, the percentage of economic loss, that is,
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percentage of loss of earning capacity, arising from a
permanent disability will be different from the
percentage of permanent disability. Some Tribunals
wrongly assume that in all cases, a particular extent
(percentage) of permanent disability would result in a
corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% as
the permanent disability, will hold that there is 45%
loss of future earning capacity. In most of the cases,
equating the extent (percentage) of loss of earning
capacity to the extent (percentage) of permanent
disability will result in award of either too low or too
high a compensation. What requires to be assessed by
the Tribunal is the effect of the permanent disability on
the earning capacity of the injured; and after assessing
the loss of earning capacity in terms of a percentage of
the income, it has to be quantified in terms of money,
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to arrive at the future loss of earnings (by applying the
standard multiplier method used to determine loss of
dependency). We may however note that in some cases,
on appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of earning
capacity as a result of the permanent disability, is
approximately the same as the percentage of
permanent disability in which case, of course, the
Tribunal will adopt the said percentage for
determination of compensation."
14.Ultimately, the Bench had remarked that while assessing this
permanent disability, the Tribunal should exercise caution,
particularly when accepting the "expert evidence" of Doctors who had
not treated the injured but who give 'ready to use' disability
certificates. The Bench had observed that such an assessment would
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be without adopting the well recognised guidelines for assessing
disabilities. There are several instances where there is mushrooming
of unscrupulous doctors who without treating the injured, give out
liberal disability certificates to help the claimants. It is for this reason
that the Bench had deemed it fit to direct the constitution of a Medical
Board to issue the Disability Certificate. The Bench had in Para 13,
summarised the principles with illustrations as follows:
"13. We may now summarise the principles
discussed above :
(i) All injuries (or permanent disabilities arising
from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be
assumed to be the percentage of loss of earning
capacity. To put it differently, the percentage of loss of
earning capacity is not the same as the percentage of
permanent disability (except in a few cases, where the
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Tribunal on the basis of evidence, concludes that
percentage of loss of earning capacity is the same as
percentage of permanent disability).
(iii) The doctor who treated an injured-claimant
or who examined him subsequently to assess the extent
of his permanent disability can give evidence only in
regard the extent of permanent disability. The loss of
earning capacity is something that will have to be
assessed by the Tribunal with reference to the evidence
in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in
different persons, depending upon the nature of
profession, occupation or job, age, education and
other factors.”
15.The Bench had also considered the difficulties that the
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litigants/claimants would face if they are compelled to secure the
presence of the surgeons or the treating doctors for giving evidence,
particularly, when such doctors are busy practitioners/Surgeons.
These doctors would not be willing to enter the witness box and
adduce evidence since waiting in the Courts take out a considerable
time of these witnesses. The Hon'ble Supreme Court had given
suggestions as to how the Courts could work around this procedure.
One suggestion that had been given was that the evidence of these
doctors could be taken through commission subject to their
availability. Secondly, the doctors could attend the Tribunal and as
and when they step into Court to give the evidence the Presiding
Officer shall forthwith record their evidence or else specify a time at
the convenience of these doctors within working hours of the Court to
adduce evidence so as to avoid them waiting in the Court the whole
day. Another suggestion given was that the documents which are not
contested could be marked without insisting on oral evidence being let
in.
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16.The Judgment of the Hon'ble Supreme Court in Raj Kumar's
case was pronounced taking into consideration the continued
pendency of the claims before the Tribunal as well as the High Court
in the light of the divergent views with reference to the assessment of
the permanent disabilities. The Bench had opined that there should
be a uniform and consistent procedure for assessment of partial
disability and functional disability so as to ensure expeditious disposal
of the claims.
17.Thereafter, the Hon'ble Division Bench of this Court in the
Judgment dated 12.04.2016 reported in (2016) 1 TN MAC 609 [Tata
AIG General Insurance Company Limited Vs. Prabhu and Others]
had also commented upon the practice of the claimants choosing to
examine a "select group of doctors” who were "stock witnesses”.
These doctors taking advantage of a readily available scientific
method had been giving varying Certificates depending upon the
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claimants, the litigants/their legal counsels etc., They therefore issued
the following directions which they had stated should come into effect
on and from 01.08.2016:
“i) We hereby direct that in motor accidents
claims the claims tribunals shall issue a letter to
Medical Board in the District of Tamil Nadu within
whose jurisdiction the claim petition was pending and
in case there was no Medical Board in the said District
to the nearest District Medical Board, to examine the
injured-claimant/victim and issue a certificate of
disability within such time as may be specified by the
Claims Tribunal.
ii)We hereby direct that the Medical Board/s shall
assess the permanent disability or lack thereof as per
the Disability (Permanent Physical Impairment)
Assessment and Certification- Guidelines & Gazette
Notification- issued by Ministry of Social Justice &
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Empowerment, Government of India, Regd
No.DL33004/99 (Extraordinary) Part II, Sec 1,
June,13, 2001- published by National Institute for the
Orthopedically Handicapped.
iii) We hereby direct that the Medical Board shall
be at liberty to follow its procedures and practices or
conduct tests, as they may deem fit, for issuance of
such certificates of disability while following the
procedure laid down in the Manual above
iv)We hereby direct that the Medical Board/s shall
be at liberty to charge such fee as may be required from
the insurance companies or transport corporations or
such other contesting parties, as the case may be, to
pay the same as part of the costs of the proceedings, to
the concerned Medical Board.
v)We hereby direct that the Claims Tribunal shall,
upon receipt of the certificate of disability, in sealed
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cover from the medical Board/s concerned, shall issue a
certified copy of the said certificate to the contesting
parties, on application
vi)We hereby direct that Claims Tribunals shall
mark the certificates of disability without need for any
oral evidence or insisting upon the appearance of
Medical Board official or personnel or Doctor,
ordinarily, as a matter of course. However, in
exceptional cases, this would not preclude the Claims
Tribunals, for reasons to be recorded in writing, suo
motu or at the request of the contesting parties to direct
the author/s of the certificate/s of disability, from the
Medical Board/s, to appear before the Claims Tribunal
to answer clarifications, if any, sought for.
vii) We hereby direct that the above said
procedure and procedure shall come into force on and
from 1/8/2016 and time granted thereof shall be utilized
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by all the stakeholders to arrange for necessary
logistics support for smooth conduct of proceedings
under the new dispensation.
viii) We hereby direct that High Court Registry
shall issue a Circular on these directions along with the
judgment with reasons to be sent to Medical Boards in
all Districts of Tamil Nadu through the Registry of the
District Courts in Tamil Nadu, as soon as possible.
(ix) We hereby make it clear that it shall be open
all stakeholders including the Registries and Medical
Boards concerned, to approach this Court for any
clarifications or changes or modifications they
envisaged for the better implementation of this new
dispensation, intended to serve the cause of the
innocent motor accidents victims/claimants, as the case
may be and this Court shall be obliged to consider the
same in the circumstances of the case.”
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18.Since Medical Boards had not been constituted in every
District, and as the order directed all injuries which are permanent or
partial in nature be referred to the Medical Board, a clarification was
sought for by the Law Association and by the Principal District Judge,
Villupuram. The matter was placed before the Hon'ble Bench. After
hearing all the stake holders and taking into account the sagacious
advice and suggestions of the learned Advocate General, directions
were issued for the smooth functioning of the earlier directions in
C.M.A.Nos.428 of 2016 and C.M.A.No.2380 of 2015 dated
11.03.2016 and 12.04.2016, respectively. The Hon'ble Bench in this
order dated 25.11.2016, had turned down the prayer of the Law
Association that since the Medical Board has not been constituted in
every District the Tribunals could continue the procedure of permitting
Private Doctors to give evidence. The Bench had taken note of the
fact that there was a mismatch in the number of reports given by the
various Medical Boards vis-a-vis the number of cases referred to
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them.
19.In order to prevent a logjam of cases being referred to the
Medical Board and with a view to ensuring the smooth
implementation of the orders dated 11.03.2016 and 12.04.2016, the
Hon'ble Bench had suggested that the Medical Board of every District
should meet at least two times a week and the disability certificates
should be issued within four weeks from the date of receipt of a copy
of the order of the Tribunal. The Bench has also considered a
contingency where there was no Medical Board constituted to examine
the injured claimant/victim to issue a certificate of disability. The
Bench had observed as follows with regard to the above:
“11.1.The Dean of the concerned Medical
College and, likewise the Superintendent of the
concerned Medical Hospital, will regularly, without
fail, gather information, on a weekly basis, from the
concerned Medical Boards, as to the number of
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references pending before them.
11.2.The Dean and the Superintendent will
ensure that no references are kept pending with the
concerned Medical Boards for a period beyond four
(4) weeks from the date of receipt of references from
the Tribunal. In case, such an eventuality arises, the
Medical Board, will articulate the reasons for the
delay. If any, information, is sought from the parties,
they shall be duly intimated.
11.3.In order to reduce the scope of gap in
getting information and material, which would be
required by the Medical Boards to carry out their
functions of assessing the extent of disability, the
concerned Tribunal will scan and thereafter e-mail
the record of each case to the Medical Boards. The
Medical Board will treat the case papers received by
them from the Tribunal, as originals and act upon
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the same, accordingly.
11.4. Similarly, upon assessment being made by
the Tribunal, the disability certificate shall be sent,
in addition via e-mail, to the concerned Tribunal.
The usual delay caused because of late receipt of a
hard copy could, thus, be avoided.
11.5. The Tribunal, while making references,
shall ensure that a date is fixed for appearance of the
claimant before the Medical Board. In case, the date
fixed by the Tribunal is not convenient to the Medical
Board, the Medical Board will give a fresh date,
which is proximate in time to the date fixed by the
Tribunal. The Tribunal will, preferably, fix a date in
the presence of the claimant, so that the claimant is
made aware as to the next date of appearance before
the Medical Board.
11.6. The Dean and the Superintendent will
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send the statistics of pending references, on a bi-
monthly basis, to the Registrar (I.T.- cum -
Statistics), High Court, Madras, who, in turn, shall
place a report before the concerned portfolio Judge
for suitable directions to the concerned Tribunal,
wherever necessary.”
The above directions were summarised in Para 13.4 as follows:
13.4. Accordingly, Medical Boards will convene
at least two times a week. The disability certificates
will be issued without fail within four (4) weeks from
the date of receipt of reference from the Tribunals.
Complicated cases will be referred to the nearest
hospital/college having multi-speciality facility. The
Medical Board, while referring the matter, will
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articulate the area of concern. The reference will be
accompanied with all relevant papers. The claimant
will be communicated the date on which his/her/its
presence, if at all, is required. In case any additional
documents/reports are required, necessary information
will be given in writing, with a copy marked to the
opposing party and/or the concerned counsel.”
20.Despite these elaborate directions, certain procedural hiccups
cropped up since the counsels practising before the Tribunal resisted
this new move and insisted on the old system of examining the doctors
who had not treated or examined the claimants but had issued only the
disability certificate.
21.Once again, a clarification was sought for by the Insurance
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Company seeking instructions for a better implementation of these
directions in C.M.P.No.6376 of 2018 with reference to injured
claimants as a whole, mainly for the purpose of certifying the
physical and functional disabilities for assessment of compensation.
The Bench by its order dated 06.07.2018 observed that the doctors
who have examined/treated the claimants alone can be examined as
witnesses. The term “examined/treated” is a phrase that has to be
discussed as this forms the bone of contention. This is also discussed
in Paras 24 to 26 hereinbelow.
22.In the Judgement of this Court reported in (2020) ACC 442
(Mad.) [Oriental Insurance Company Limited and others v.
Giridharan and others], the learned Judge had painstakingly set out
the guidelines and notifications issued by the Ministry of Social
Justice and Empowerment, [(Department of Empowerment of Persons
with Disabilities Divyagjan)], Government of India, dated 04.01.2018
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for assessing/evaluating various types of disabilities which was set out
in Annexure II as follows:
I. Locomotor disability including cerebral palsy,
leprosy cured, dwarfism, acid attack victims and
muscular dystrophy;
II. Blindness and low-vision;
III. Deaf and hard of hearing and speech and
language disability;
IV. Intellectual disability and specific learning
disabilities;
V. Mental Illness;
VI. Chronic neurological conditions;
VII. Haemophilia, Thalassemia and sickle cell
disease; and
VIII. Multiple disabilities.
Though various appendices under the multiple disability are
formulated therein, the learned Judge had extracted the disability
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which had been mentioned in Appendix IV and V falling under the
head of “Multiple Disabilities”. The learned Judge had opined that
the issuance of a disability certificate without meeting the statutory
requirement will be an irregularity and an inconsistency and suggested
that a uniform method should be adopted for the issuance of disability
certificates. The Court had held that Disability Certificates have to be
issued by the Authorities competent to issue such Certificates, only as
per the Appendices prescribed in the aforesaid Notification dated
04.01.2018. The order was directed to be circulated to all Districts
and Subordinate Courts dealing with Motor Accident Claims.
23.In a recent Judgment of the Hon'ble Supreme Court dated
16.11.2021 reported as Bajaj Allianz General Insurance v. United of
India in W.P.(C) 534 of 2020, the Hon'ble Supreme Court had once
again reiterated the guidelines laid down in Rajkumar and
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Ajaykumar and another [(2011) 1 SCC 343] and stated that the
guidelines laid down therein has to be mandatorily followed by all the
Tribunals in respect of the loss of income/disablement. The issuance
of disability certificate, the Hon'ble Bench opined should have a Pan
India Uniformity.
24.Despite the above judicial pronouncements, even today, the
practitioners before the Tribunal are taking advantage of the term
“who have examined/treated” in isolation, to examine doctors who
just issue disability certificate without examining or treating the
injured adopting the clinical methods. This, despite the fact that the
Hon'ble Division Bench even in its earlier order dated 25.11.2016 in
C.M.A.Nos.2380 of 2015 and 428 of 2016 referred supra had rejected
the submissions of the Association that since the Medical Boards had
not been able to complete the task of examining the persons with
disability and submit their reports within the time stipulated by this
Court, the earlier practice of bringing the stock doctors should be
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permitted. In the order dated 06.07.2018 in C.M.P.No.6376 of 2018
in C.M.A.No.2380 of 2015, it was clarified that it was only doctors
who alone had examined or treated the claimants who shall be
permitted to be examined as witness in the absence of any report from
the Medical Boards. The term “examination of the injured” involves
not only seeing the injured but also giving an assessment of the injury
on the date of his examination, the condition of the injury on the date
of the examination by adopting clinical methods and giving an opinion
as to whether the injured has recovered fully or whether the condition
has worsened/partially improved and whether there is scope for
improvement. The doctors who are now providing the Disability
Certificate simply refer to the earlier treatment and based upon the
injuries described give out Disability Certificates.
25.In the light of the above order stating that the Doctor who
examines the injured can be summoned to give evidence the term
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“examined/treated” has to be discussed as this forms the backbone of
most claims before the Tribunal. In Stedman’s Medical Dictionary
(28th Edition), the definition of the word ‘Examination’ in page 679 is
as follows:
“(1)Any investigation or inspection made for the
purpose of diagnosis, usually qualified by the method
used.
(2)A method of evaluation of skills or knowledge
after receiving instruction in a given field.”
In 'Taylor’s Principles and Practice of Medical Jurisprudence' (13th
Edition, Churchill Livingstone) by A. Keith Mant, the terms "clinical
opinion" and "detailed medical report" have been discussed as
follows:
“6.A clinical opinion is given at the end of the
clinical examination and before the result of any
laboratory tests are available. This opinion must be
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based entirely upon the clinical findings during the
examination -it may have to be modified at a later stage
when the results of laboratory examinations are to
hand.
The clinical opinion can only properly state that
the examination findings are/are not consistent with the
history given; the abnormal conditions found on
examination and their possible cause; the immediate
effects of the conditions found and their likely long-
term effects. Medico-legal diagnosis depends upon
finding abnormal conditions and assessing if the
abnormal conditions found (or sometimes their
absence) are consistent with the detailed history
obtained. The vital importance of taking a details
history before performing a thorough examination is
therefore obvious.
7.A detailed medical report must be prepared as
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soon as possible after the examination has been
concluded, and before the laboratory results are
available. This report must include:
a) the identity of the patient examined,
b) the place, date and time of the examination;
c) the identity of the authority requesting the
examination;
d) the fact that consent to examination and report
was obtained;
e) the identity of all persons present during the
examination;
f) the details of all the history, general examination
and special examinations performed;
g) the description of all specimens taken, and their
disposal;
h) the clinical opinion formed during the
examination;
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i) The time spent in the examination.
A copy of this report should be retained by the
examining doctor, and should be available, together
with the original examination notes, should the matter
come to Court.”
26.In relation to medico-legal reports pertaining to forensic
cases, in ‘Modi -A Textbook of Medical jurisprudence and Toxicology’
(25th Edition, Lexis Nexis) by Justice K Kannan, the author has stated
what constitutes a Medico-Legal Report-
“Medico-legal report:- Medico-legal reports are
the documents prepared by medical officers in
obedience to a demand by an authorised police officer
or a Magistrate, and are chiefly referred to in criminal
cases relating to assault, rape,murder, and poisoning
accidents. These reports consist of three parts, namely:
1.introductory or preliminary data, for example
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full name, age, address, date, place and time of
examination, including identity marks;
2.the facts observed on examination; and
3.the opinion or the inference drawn from the
facts.
In order that they may be admitted as exhibits in
evidence, these reports should be written by the medical
officer at the time of the examination or immediately
afterwards. They form the chief documents in judicial
inquiries and are likely to pass from the lower to the
higher Courts, as well as to be placed in the hands of
pleaders. Hence, utmost care should be used in
preparing them. No exaggerated terms,superlatives, or
epithets expressing one's feelings should be used; they
should not be judgmental.”
27.Therefore, from a reading of all these Judgments and the
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literature above, it is crystal clear that the object of these Judgements
were only to ensure that the persons who have sustained permanent
disability should be examined by the Medical Board so as to bring
about a Uniformity in the assessment of disabilities and to stop the
entry of doctors who are stock witnesses and who without following
the clinical method of examination of the injured issue certificates.
Uniformity in the assessment of the disability which is the object of
the judgment can be achieved only when the Assessment is done by
the Medical Board constituted by the Deans of the respective
Government hospitals. The Special Government Pleader at the request
of this Court has made his submissions and after discussion with the
Members of the Medical Board he has provided a specimen Disability
Certificate that can be used for the purpose of assessing disability in
accident cases. This specimen provides the various fields that the
Members of the Board have to consider while issuing the Disability
Certificate. This specimen shall form part of the Order and shall be
circulated to the Deans of the various Government
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Hospitals/Superintendent of the Government Hospitals around the
State. The Special Government Pleader would inform the Court that
in cases where the functional disability has to be assessed it is only
the Vocational Rehabilitation Centre at Chennai that can undertake
this exercise. This once again could give rise to delay and therefore
only persons who in the opinion of the Board require assessment for
their functional disability can be referred to the Rehabilitation Centre
at Chennai. Such Rehabilitation Centres should be set up in each
District to avoid delay and the Government is directed to take steps in
this regard.
28.The Tribunals while assessing the disability of injured
persons shall strictly follow the dicta laid down in Raj Kumar's case
by the Hon'ble Supreme Court, the Hon'ble Division Bench of this
Court in the Judgment reported in (2016) 1 TN MAC 609 [Tata AIG
General Insurance Company Limited Vs. Prabhu and Others] and
its subsequent clarifications as also the Judgment reported in (2020)
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ACC 442 (Mad.) [Oriental Insurance Company Limited and others
v. Giridharan and others] which are extracted hereinbelow:
“Further, where no Medical Board is constituted,
only in such cases, the doctors who had initially
treated the injured or clinically examined the injured
who can be called upon to adduce evidence. The
Tribunal shall not give credence to the Certificate
issued by any other doctor.”
29.Therefore to broadly summarise the above discussions, the
Tribunal below shall follow the procedure and the directions issued in
the Judgment in (2016) 1 TN MAC 609 [Tata AIG General
Insurance Company Limited Vs. Prabhu and Others] and the
subsequent clarifications in C.M.P.Nos.2380 of 2015 and 428 of
2016 dated 25.11.2016 and C.M.P.No.6376 of 2018 in
C.M.A.No.2380 of 2015 dated 06.07.2018, and also the Judgment in
(2020) ACC 442 (Mad.) [Oriental Insurance Company Limited and
others v. Giridharan and others]. The main feature of the above
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Judgments is collated hereinbelow:
i)Refer the injured claimant to the Medical Board
of the District within whose jurisdiction the claim is
filed to issue a Disability Certificate as per the
annexed Specimen Disability Form. In case, the
Tribunal requires a specific report with reference to the
functional disability the same shall be specifically
mentioned.
ii)The Medical Board/s shall assess the
permanent disability or lack thereof as per the
Disability (Permanent Physical Impairment) Assessment
and Certification- Guidelines & Gazette Notification-
issued by Ministry of Social Justice & Empowerment,
Government of India, Regd No.DL33004/99
(Extraordinary) Part II, Sec 1, June,13, 2001-
published by National Institute for the Orthopedically
Handicapped.
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iii)The Medical Board shall be at liberty to follow
its procedures and practices or conduct tests, as they
may deem fit, for issuance of such certificates of
disability while following the procedure laid down in
the Manual above including the decisions to refer a
patient to the Rehabilitation Centre for assessing the
functional disability.
iv)The Medical Board/s shall be at liberty to
charge such fee as may be required from the insurance
companies or transport corporations or such other
contesting parties, as the case may be, to pay the same
as part of the costs of the proceedings, to the concerned
Medical Board.
v)The Claims Tribunal shall, upon receipt of the
certificate of disability, in sealed cover from the
medical Board/s concerned, shall issue a certified copy
of the said certificate to the contesting parties, on
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application
vi)The Claims Tribunals shall mark the
certificates of disability without need for any oral
evidence or insisting upon the appearance of Medical
Board official or personnel or Doctor, ordinarily, as a
matter of course. However, in exceptional cases, this
would not preclude the Claims Tribunals, for reasons to
be recorded in writing, suo motu or at the request of the
contesting parties to direct the author/s of the
certificate/s of disability, from the Medical Board/s, to
appear before the Claims Tribunal to answer
clarifications, if any, sought for.
vii)The Dean of the concerned Medical College
and, likewise the Superintendent of the concerned
Medical Hospital, will regularly, without fail, gather
information, on a weekly basis, from the concerned
Medical Boards, as to the number of references pending
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before them.
viii)The Dean and the Superintendent will
ensure that no references are kept pending with the
concerned Medical Boards for a period beyond four
(4) weeks from the date of receipt of references from
the Tribunal. In case, such an eventuality arises, the
Medical Board, will articulate the reasons for the
delay. If any, information, is sought from the parties,
they shall be duly intimated.
ix)The Tribunal, while making references, shall
ensure that a date is fixed for appearance of the
claimant before the Medical Board. In case, the date
fixed by the Tribunal is not convenient to the Medical
Board, the Medical Board will give a fresh date, which
is proximate in time to the date fixed by the Tribunal.
The Tribunal will, preferably, fix a date in the presence
of the claimant, so that the claimant is made aware as
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to the next date of appearance before the Medical
Board.
x)Where there is no Medical Board constituted in
a District only in such cases, the Tribunal shall for
reasons to be recorded in writing permit assessment by
private doctor.
xi)Where the injured is examined by such private
Doctor the Tribunal shall ensure that this Doctor has
medically examined the injured and issued the
Certificate after undertaking the various medical tests
as required and issue the Disability Certificate as set
out in the Specimen Disability Certificate.
xii)The Tribunal shall ensure that Doctors who
simply rely upon the earlier medical records to issue
the medical certificate shall not be permitted to adduce
evidence and this Certificate shall not be taken on file.”
30.The Civil Miscellaneous Appeal is allowed with the
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directions to the Tribunal and the Medical Board to follow the
directions as set out in Para 29 supra. No costs. Consequently,
connected Miscellaneous Petition is closed. The Specimen Disability
Certificate shall also be annexed and circulated with the order to all
the Motor Accidents Claims Tribunals and Medical Boards / Deans of
the Government Hospitals.
This Court wishes to place its appreciation for the assistance
rendered by Mr.Edwin Prabhakar, learned Special Government
Pleader, in this case.
31.03.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
Note to Office:
The Specimen Disability Certificate shall also
be annexed and circulated with the order.
Enclosed:
Specimen Disability Certificate
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To
The V Judge,
Motor Accidents Claims Tribunal,
Court of Small Causes,
Chennai.
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P.T. ASHA, J,
mps
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31.03.2022
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